Legislature(2007 - 2008)BELTZ 211
03/05/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB273 | |
| HB163 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 273 | TELECONFERENCED | |
| + | HB 163 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 5, 2008
1:54 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Charlie Huggins, Vice Chair
Senator Lesil McGuire
Senator Gene Therriault
COMMITTEE CALENDAR
SENATE BILL NO. 273
"An Act relating to cruelty to animals and promoting an
exhibition of fighting animals."
HEARD AND HELD
CS FOR HOUSE BILL NO. 163(JUD)
"An Act relating to real property foreclosures, to the sale of
property on execution, and to deeds of trust."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 273
SHORT TITLE: CRUELTY TO ANIMALS
SPONSOR(s): SENATOR(s) WIELECHOWSKI
02/15/08 (S) READ THE FIRST TIME - REFERRALS
02/15/08 (S) JUD
02/27/08 (S) JUD AT 1:30 PM BELTZ 211
02/27/08 (S) Scheduled But Not Heard
03/05/08 (S) JUD AT 1:30 PM BELTZ 211
BILL: HB 163
SHORT TITLE: PROPERTY FORECLOSURES AND EXECUTIONS
SPONSOR(s): REPRESENTATIVE(s) RAMRAS
02/28/07 (H) READ THE FIRST TIME - REFERRALS
02/28/07 (H) L&C, JUD
03/30/07 (H) L&C AT 3:00 PM CAPITOL 17
03/30/07 (H) -- MEETING CANCELED --
04/20/07 (H) L&C AT 3:00 PM CAPITOL 17
04/20/07 (H) Moved CSHB 163(L&C) Out of Committee
04/20/07 (H) MINUTE(L&C)
04/23/07 (H) L&C RPT 1DP 4NR
04/23/07 (H) DP: RAMRAS
04/23/07 (H) NR: BUCH, LEDOUX, NEUMAN, OLSON
04/27/07 (H) JUD AT 1:00 PM CAPITOL 120
04/27/07 (H) Heard & Held
04/27/07 (H) MINUTE(JUD)
04/30/07 (H) CORRECTED L&C RPT CS(L&C) NT 1DP 4NR
04/30/07 (H) DP: RAMRAS
04/30/07 (H) NR: BUCH, NEUMAN, LEDOUX, OLSON
04/30/07 (H) JUD AT 1:00 PM CAPITOL 120
04/30/07 (H) Moved CSHB 163(JUD) Out of Committee
04/30/07 (H) MINUTE(JUD)
05/01/07 (H) JUD RPT CS(JUD) NT 3DP 4NR
05/01/07 (H) DP: GRUENBERG, LYNN, RAMRAS
05/01/07 (H) NR: COGHILL, DAHLSTROM, SAMUELS, HOLMES
05/05/07 (H) TRANSMITTED TO (S)
05/05/07 (H) VERSION: CSHB 163(JUD)
05/07/07 (S) READ THE FIRST TIME - REFERRALS
05/07/07 (S) JUD, FIN
03/05/08 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
KATHERINE PUSTAY, Staff
to Senator Wielechowski,
POSITION STATEMENT: Introduced SB 273 on behalf of the sponsor.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
Juneau, AK
POSITION STATEMENT: Voiced concern with provisions of SB 273.
JANE PIERSON, Staff
to Representative Ramras
Alaska State Capitol
Juneau, AK
POSITION STATEMENT: Introduced HB 163 on behalf of the sponsor.
DENNIS FENERTY, Attorney at Law
Groh Eggers, LLC
Anchorage, AK
POSITION STATEMENT: Offered suggestions on HB 163.
STEPHEN ROUTH, Attorney at Law
Routh Crabtree, APC
Anchorage, AK
POSITION STATEMENT: Offered perspective on HB 163.
SABRINA FERNANDEZ, Attorney at Law
Default Services Alaska (DSA)
Anchorage, AK
POSITION STATEMENT: Offered suggestions on HB 163.
DAN NICHOLSON, representing himself
As a private real estate investor
Anchorage, AK
POSITION STATEMENT: Offered suggestions on HB 163.
ACTION NARRATIVE
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:54:03 PM. Present at the call to
order were Senators French and Wielechowski.
SB 273-CRUELTY TO ANIMALS
CHAIR FRENCH announced the consideration of SB 273.
1:54:55 PM
KATHERINE PUSTAY, staff to Senator Wielechowski, sponsor of SB
273 said the bill seeks to increase penalties for the most
heinous acts of animal cruelty and criminalize participation in
animal fights. Currently in Alaska a person can torture or
poison an animal and only be charged with a misdemeanor. The
bill won't change the penalty for causing injury to an animal
due to criminal negligence. Currently, 44 states and the
District of Columbia have enacted felony-level penalties for
heinous acts of animal cruelty. Alaska ranks among the weakest
with respect to animal protection.
MS. PUSTAY said that research indicates that without
intervention, people who abuse and kill animals are more likely
to also abuse humans. Over 70 percent of pet owners that enter
domestic violence shelters indicate that their batterer
threatened, injured, or killed family pets. Many abusers have a
history of abusing animals that precedes domestic violence
toward their partner. Hopefully, she said, the committee will
also discuss ways to strengthen the application toward domestic
violence cases. Animal cruelty has been found to be an indicator
for predicting which children subsequently will exhibit
antisocial and/or aggressive behavior. Serial and school killers
frequently have histories of animal abuse. She highlighted the
wide ranging support for the bill. "We believe that passage of
felony-level animal cruelty is critical in halting the
progression of violent crime," she said.
MS. PUSTAY referred to the issue of proportionality that the
Department of Law raised during the previous hearing, and said
the sponsor believes that there is an issue with the way
domestic violence cases are prosecuted. The way the statute is
written, a person who "knowingly inflicts severe and prolonged
physical pain or suffering on an animal" is committing an
offense that is similar to assault in the first degree. The
penalty for first degree assault on a person is a class A
felony. SB 273 says that same level of assault on an animal is a
class C felony. We don't intend to suggest that crimes against
animals should be punished the same as crimes against humans,
but we do want to say that torturing an animal is not acceptable
in this state, she said.
1:57:28 PM
CHAIR FRENCH asked her to elaborate on the link between animal
cruelty and domestic violence.
MS. PUSTAY referred to a fact sheet in the packet from the
National Coalition Against Domestic Violence (NCADV) citing
numerous studies that indicate there's an overlap.
CHAIR FRENCH asked if abusers sometimes use pets as a proxy for
abusing a spouse.
MS. PUSTAY said she understands that threatening violence toward
a pet is oftentimes used to exert control over another person.
1:59:20 PM
SENATOR WIELECHOWSKI provided statistics that he finds
startling. NCADV reports that 71 percent of pet owners who enter
domestic violence shelters report that their batterer
threatened, hurt, or killed family pets; one study found that 87
percent of batterers perpetrated pet abuse in the presence of
their partner for the purpose of exerting control; and up to 76
percent of batterers perpetrated pet abuse in the presence of
children. "There's a staggering correlation … between pets and
domestic violence - unfortunately so," he said.
SENATOR WIELECHOWSKI, responding to a question from Senator
French, explained that currently there are 4 provisions that
apply to animal cruelty: torturing an animal, criminal
negligence of an animal, killing or injuring an animal by use of
a decompression chamber, and injuring or killing an animal with
poison. Torturing or intentionally inflicting prolonged pain and
suffering on an animal should be punished by more than a $100
fine; it should send a clear message that it won't be tolerated.
The policy choice was to make torture, use of a decompression
chamber, and poisoning of an animal a felony offense.
2:02:11 PM
CHAIR FRENCH mentioned the difference between the penalties for
AS 11.61.140(a)(2) and the statute on promoting an exhibition of
fighting animals.
SENATOR WIELECHOWSKI highlighted that promoting or exhibiting a
fighting animal is currently a class C felony and in many states
it's either a misdemeanor or felony to be a spectator. This bill
says promoting an exhibition of fighting animals is a class A
misdemeanor for a first offense and a class C felony for each
subsequent offense.
2:03:26 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, said the department has serious concern with
raising animal cruelty from a class A misdemeanor to a class C
felony. Animal cruelty is shocking and despicable and it's
obviously related to domestic violence, but DOL believes that
one year in jail is enough for that conduct. She noted that for
practical reasons, most domestic violence charges against humans
are resolved as class A misdemeanors. Alaska prosecutors try 5
percent of the cases that are brought, which is the highest in
the nation, and 95 percent of the cases are resolved.
Considering the proportionality of penalties for injury to
people, this bill would send the wrong message, she said. The
increased penalty would also put prosecutors in a more difficult
position with respect to allocating resources.
CHAIR FRENCH asked how many prosecutions the DOL does each year
for animal cruelty. At a future hearing he'd like to hear
anecdotes about the range of severity in cases.
MS. CARPENETI agreed to get the information. She reminded
members that the statute allows a separate charge for every
animal that is mistreated, and the sentences could be served
consecutively.
2:06:42 PM
CHAIR FRENCH said he'd also like to know the longest sentence
ever imposed when animal cruelty is the only charge. The
sponsor's point is that in the most heinous cases, having a
bigger hammer has advantages.
MS. CARPENETI pointed out that the mandatory minimum for a
second domestic violence related fourth degree assault is 30
days. The mandatory minimum for a third domestic violence
related fourth degree assault is 45 days. The penalty range for
a first class C felony conviction is zero to two years.
Conceivably the sentence for a felony level cruelty to animals
could be less than that, but it's unlikely, and the message it
sends is a concern, she said.
CHAIR FRENCH said this bill would make it a class C felony to
knowingly inflict severe and prolonged physical pain or
suffering on an animal, and he believes that doing that to a
human being would be assault in the first degree. That's a class
A felony, and the penalty is up to 20 years in prison.
MS. CARPENETI clarified that she's talking about the practical
reality rather than the penalty that's on the books.
CHAIR FRENCH agreed that someone would make that point, but the
reciprocal point is that the parallel harm to a human is 20
years in prison.
MS. CARPENETI said the statutes don't match exactly because the
assault statutes talk about injury and the cruelty to animals
statutes talk about pain and suffering. That's interesting in
itself, she said, because you don't know.
CHAIR FRENCH responded we'd know it when we looked at the
injuries to the animal, the photographs, and the weight of the
animal.
MS. CARPENETI added that proving prolonged pain and suffering.
is more difficult. The statutes don't really match because for
assault you must prove injury, serious physical injury, or
physical injury.
2:09:40 PM
SENATOR WIELECHOWSKI remarked that after many discussions he
still doesn't understand why the administration doesn't support
the bill. He agreed with the Chair that the similar sort of
assault to a human being would be a class A felony, and a
potential prison sentence of 20 years. He surmised that
poisoning or putting a human being in a decompression chamber
would be an unclassified felony so he disagrees with the
proportionality argument. Also, if someone were to slash and
destroy another person's picture or painting of a beloved pet,
that is a class C felony, but if the same person inflicted the
same damage on the pet, that would only be a misdemeanor under
current law. "There's no proportionality there so I respectfully
disagree with the … administration on this matter," he said.
MS. CARPENETI responded that the criminal laws aren't perfect;
the $500 felony threshold for a class C felony is nearly 30
years old and it's worth discussion.
CHAIR FRENCH announced he would hold public testimony open so
that the full committee could hear from the public. He set SB
273 aside.
CSHB 163(JUD)-PROPERTY FORECLOSURES AND EXECUTIONS
CHAIR FRENCH announced the consideration of HB 163
2:12:28 PM
JANE PIERSON, staff to Representative Ramras, sponsor of HB 163,
reminded committee members that they heard the companion bill,
SB 18. She explained that HB 163 will clarify and modernize the
antiquated and ambiguous statutes on non judicial property
foreclosures. The hope is that more open and accessible
foreclosure auctions will benefit borrowers, lenders, title
insurers, individuals, and neighborhoods, and help soften the
impact that foreclosures can have on an economy. Best practices
from 11 other states were used to draft the bill. She noted that
banks in Alaska currently lose about $20,000 per foreclosure
sale.
CHAIR FRENCH asked if someone could elaborate on where the loss
comes from. Ms. Pierson deferred the question to Stephen Roath.
MS. PIERSON highlighted that HB 163 would improve the
foreclosure process by making the following changes:
· Clarify how the proceeds from a foreclosure auction can be
distributed.
· Assure that foreclosure trustees are fiscally responsible
by imposing reasonable bond requirements.
· Create deadlines to deter unnecessary delays.
· Allow trustees to nullify sales when mistakes have been
made that would negatively affect the integrity of a sale.
· Establish procedures involving deceased borrowers.
· Create rules to govern times and methods for posting
foreclosure sales.
· Create Internet publication procedures.
· Define when rights are terminated in the foreclosure
process.
· Allow acceptance of foreclosure auction bids via email,
Internet, and telephone.
2:16:03 PM
SENATOR WIELECHOWSKI asked if there are significant differences
between HB 163 and the companion Senate bill that the committee
heard last year.
MS. PIERSON replied one of the few differences is in Section 4,
which sets a time limit to cure a default of up to two days
before the sale rather than five days. Other than that, there
were no substantive changes.
DENNIS FENERTY, Attorney at Law, Groh Eggers, LLC, said he has
represented lenders for 23 years and has been involved in many
foreclosure sales. HB 163 is a good bill, but he has concern
with Section 2 related to Internet advertizing of foreclosure
sales. As presently written, the qualifications for the Internet
websites would exclude the Anchorage Daily News (ADN) and the
Alaska Journal of Commerce (AJC) because neither of those
classified ad websites is used primarily to advertize real
property under foreclosure. Both sites are instead generally
used for all classified advertizing. Disqualifying those would
not be a good outcome. It's in the best interest of both the
lender and the borrower to have competing websites because that
tends to reduce advertizing costs. "That certainly was the case
when the Alaska Journal of Commerce was recognized as an
acceptable publication for newspaper ads," he said.
2:19:59 PM
MR. FENERTY said he has no idea whether the required 5,000
visits per month is realistic for either of the aforementioned
papers. But as an attorney who represents lenders and conducts
foreclosures, he is interested in having a site where he can
place the required Internet advertizing. He suggested the
committee amend Section 2 by striking subsection (c)(3), and
reducing the required visits in subsection (c)(5) so that
present advertisers would qualify.
CHAIR FRENCH asked Ms. Pierson if she wanted to address either
issue. She deferred to Mr. Roath for a response.
2:21:47 PM
SABRINA FERNANDEZ, Attorney at Law, Default Services Alaska
(DSA), said she has done many foreclosure sales over the years.
The title company she currently works for recently formed DSA to
act as a trustee to conduct non judicial foreclosure sales. She
is testifying today to object to Section 2 because it will make
it difficult for new companies, like DSA, to act as trustees.
The Internet publication conditions under subsection (c)(4) and
(5) become onerous for newspapers and servicers such as AHFC,
banks, title companies and attorneys. None of those business
websites could be used to get foreclosure sale information out
to the public so that more people would attend a sale. She
surmised that no website other than Alaska Trustees would
qualify for the Internet publication conditions. Other
qualifications could be established to readily allow other
websites to pop up using simple Google-type searches, she said.
CHAIR FRENCH asked Mr. Routh to address the concerns voiced
about Section 2 in addition to his overall view of the bill.
2:24:44 PM
STEPHEN ROUTH, Attorney at Law, Routh & Crabtree, APC, stated
support for HB 163. He's conducted many foreclosure sales over
the years and has the perspective of the Alaska market and seven
other states. This bill is an attempt to do best practice
legislation and take innovative steps with regard to
foreclosures.
MR. ROUTH explained that the qualifications in Section 2 mirror
the minimum circulation requirements that currently apply to
newspapers. Those are in current statute, he said. The
requirement to have 5,000 visitors each month isn't a lot. He
suspects that four or five websites would qualify now, and more
will follow. He pointed out that the newspapers won't be
impacted because this doesn't remove the requirement for the
printed publication as part of the foreclosure process. The
Anchorage Daily News and the Alaska Journal of Commerce, for
example, will derive fees from print media and they'll continue
to place ads on the Internet without mandate. The only thing
that changed in that area is that companies that specialize in
getting the message out to prospective bidders will be
encouraged to step into the market.
2:28:03 PM
CHAIR FRENCH asked if this bill is the same as the one Senator
Bunde introduced and the committee heard last year.
MR. ROUTH said it's the same with the exception of the two areas
of change that Ms. Pierson identified. The reinstatement period
was shortened from five days to two days and the other change
occurs in Section 5. The term "grantor" was changed to "trustor"
for consistency.
2:29:22 PM
DAN NICHOLSON, representing himself as a private real estate
investor from Anchorage, said he has invested in foreclosures
for about 10 years. In addition to buying and selling foreclosed
real estate at tax sales and trustee sales, he's also acted as a
trustee in a trustee foreclosure sale. Referring to Section 2 of
the bill, he noted that the notice of a sale must be posted in
three public places, but it doesn't define what a public place
is. That should be spelled out, he said. Posting at the
courthouse ought to be one of the requirements and the post
office might still be a possible option. Turning to the Internet
website requirements, he said he doesn't know if Mr. Routh
mentioned that he owns a website that, as it happens, is
probably the only one that would meet the qualifications in this
bill. For that reason he questions whether the qualifications
would do anything other than enhancing that business.
2:33:13 PM
MR. NICHOLSON suggested expanding the Alaska online public
notice website to include the mandatory public foreclosure
notices. He reviewed the new provisions to AS 34.20.080(a) in
Section 7, and said he doesn't see how it will be possible to
have a courthouse auction and also take bids by telephone, the
Internet, and electronic mail. Keeping all the bidders abreast
of what's happening seems unworkable in this kind of
environment. He suggested that the requirement to take bids by
phone, Internet, and electronic mail should either be deleted or
amplified so the procedure is a matter of law.
2:36:52 PM
MR. NICHOLSON referred to Section 10 and said he's pleased that
the procedures for distributing the cash proceeds of a sale
according to priority will become a matter of statute. His
concern relates to the trustee having to find and inform the
various parties that there are excess proceeds. The notice could
include a clause that the parties need to check on whether or
not there are excess proceeds. The parties of interest have all
been notified so perhaps the various note holders, lien holders,
mortgage holders, and beneficiaries of the trustee should be
given a certain statutory time in which to submit a claim. That
could be an additional clause in the notice.
2:40:45 PM
MR. NICHOLSON turned to AS 34.20.080(f)(3), Section 10, that
says "the trustor's successor in interest whose interest appears
of record at the time of the foreclosure sale," and observed
that, as a matter of law, a deed doesn't need to be recorded in
order to be effective. Recording does establish a priority of
claim. A trustor could sell his or her interest in the property
for consideration, but that interest may not be recorded before
the foreclosure sale so he'd like "appears of record" to be
struck.
2:44:20 PM
MR. NICHOLSON said Section 13, which amends AS 34.20, by adding
section .125, deals with the required trustee bond. When he was
a trustee he had no difficulty doing the foreclosure and he
doesn't believe there is a need to require a surety bond.
MR. NICHOLSON observed that distribution of excess proceeds
isn't addressed in the bill.
CHAIR FRENCH asked him to email his suggestions for possible
inclusion in the bill as an amendment.
MR. NICHOLSON agreed to do so.
CHAIR FRENCH asked Mr. Routh if he'd like to address the points
that Mr. Nicholson raised.
2:48:16 PM
MR. ROUTH mentioned the request for a definition for public
place and said that the statute currently mandates posting in a
post office and two other places. This bill removes the post
office requirement because postings are often no longer allowed
there. Since post office regulations and state law don't comply,
this cleans up that area of existing statute. With respect to
Section 2 and providing notice on an Internet website, he said
he doesn't own or know about the website Mr. Nicholson
mentioned. He explained that the Internet advertizing process is
intended to widen the potential pool of individuals who would
show up at an auction. That works to everyone's benefit because
any funds that are left over go to the borrower. He believes
that the more notice the better, the wider the audience the
better, and the higher the bids the better. If the price goes
beyond the cost of the foreclosure and the amount that is due
the excess money goes to the borrower.
With respect to the concern that was voiced about escrow funds
in Section 7, he said the goal of trustees should be to maximize
bidding at the sale for the protection and benefit of the
borrower. As a trustee you should take every opportunity to get
bids in and qualified. This will make it a more reasonable,
open, efficient, and transparent process.
2:51:48 PM
CHAIR FRENCH clarified that he is saying a trustee would have
the obligation to lay out the ground rules before the sale and
if telephone bids are going to be accepted, they'd be accepted
by anyone provided he or she could make the money immediately
available for disbursement.
MR. ROUTH agreed. He sees no reason why someone in New York
can't bid on property in Homer. "Anybody can bid from anywhere
as long as it's cleared funds that are available [and there is]
a process for the funds to be brought in in a fair, open, and
competitive process."
SENATOR WIELECHOWSKI asked how many other states allow telephone
or Internet bidding.
MR. ROUTH replied he believes some states allow bids by
telephone with similar protection language with regard to
cleared funds being available. This would probably be a first
for allowing Internet bidding, he said.
MR. ROUTH said Section 10 relates to title insurers in Alaska
and the bill proposes a common-sense way for handing out funds
after a sale. This would take away the opportunity to litigate
on who gets the money. With respect to the comment that it
wouldn't be fair that an unrecorded interest wouldn't be aware
of a foreclosure process, he said that's how equity skimmers
operate and it's not a good thing. Anyone who takes a deed from
a homeowner in distress should make a legitimate deal and record
that deed. "Don't hide the deed and then claim foul that you
somehow didn't get notice of the sale because you hid your
interest," he said.
2:55:07 PM
MR. ROUTH said the thinking is similar for trustee bonds in
Section 13. Trustee defalcation hasn't happened in Alaska yet,
but it will, he said. There's no requirement that funds be
placed in a trust account or escrowed and there's no requirement
of a bond so it's open season for hurting someone. This bill
seeks to get ahead of that happening. The suggested language is
the result of conversations with bonding companies about
reasonable cost and what would work in this environment.
CHAIR FRENCH asked if there's a model act on this topic.
MR. ROUTH said not that he's found.
SENATOR WIELECHOWSKI asked who typically acts as a trustee and
if this potentially hurts small businesses that couldn't get a
$250,000 bond.
MR. ROUTH replied he doesn't believe this would hurt anyone.
Title companies, attorneys, and law firms typically serve as
trustees. Being a trustee is nothing to step into lightly.
Valuable rights that are conveyed away in this process and there
ought to be some minimum level of competence.
2:57:49 PM
CHAIR FRENCH asked what the cost might be to obtain a bond.
MR. ROUTH recalled that it wasn't at all onerous.
CHAIR FRENCH assumed that the requirement would apply to anyone
who wants to be a trustee.
MR. ROUTH said title insurers are exempt. They're already
licensed by the state to issue title insurance, and that's
probably why they have a statutory waiver on the escrow bond.
There are no other exceptions.
SENATOR WIELECHOWSKI observed that currently he could help a
friend by serving as a trustee, but if this passes he'd need to
pay $5,000 for the surety bond.
MR. ROUTH said if he's representing his friend as the
beneficiary, the way it typically works now is that the title
insurance company would be the trustee in the foreclosure sale.
3:00:15 PM
MR. FENERTY commented that the trustee is tasked with duties to
the lender and the borrower and therefore is supposed to fairly
fulfill the duties under the deed of trust in both directions.
As an attorney he represents the lender, and he would rarely if
ever agree to be a trustee because he doesn't want to owe duties
in both directions. It's his practice to use title companies to
act as a trustee.
MR. FENERTY highlighted that three witnesses voiced concern
about the requirements for an Internet website and that it's
likely that not a single site in Alaska qualifies. He said he
knows that Mr. Routh has a regional multi-state site that may
qualify. He asked the committee to pay attention and make sure
that not just one site qualifies, effectively shutting out
competition.
CHAIR FRENCH held HB 163 in committee.
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:02:04 PM.
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